Ghafoor & Ors v Cliff & Ors [2006] EWHC 825 (Ch) (11 April 2006)

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England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ghafoor & Ors v Cliff & Ors [2006] EWHC 825 (Ch) (11 April 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/825.html
Cite as: [2006] 1 WLR 3020, [2006] WLR 3020, [2006] EWHC 825 (Ch)

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		Neutral Citation Number: [2006] EWHC 825 (Ch)
		Case No: HC05C02139

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

11/04/2006

B e f o r e :

MR JUSTICE DAVID RICHARDS
____________________

Between:

	QAMER RAZA GHAFOOR SHAHID RAZA GHAFOOR AMJED RAZA GHAFOOR	Claimants
	- and -
	RICHARD JOHN CLIFF KAREN NICOLA SPENCER TASNEEM AKHTAR FAROOQI	Defendants

____________________

Patrick Talbot QC and Andrew de la Rosa (instructed by Flint Bishop & Barnett) for the Claimants
Grant Crawford (instructed by SGC Solicitors) for the 1st and 2nd Defendants
T.J.B Dumont (instructed by Berryman Shacklock LLP) for the 3rd Defendant
Hearing dates: 7 and 8 November 2005
____________________

HTML VERSION OF JUDGMENT
____________________

The Honourable Mr Justice David Richards :

Introduction

This judgment concerns the costs of an application by the claimants to revoke a grant of administration ad colligenda bona of the estate of Abdul Ghafoor, deceased. The grant was made in favour of the first and second defendants on 1 July 2005 at a time when they were also acting as solicitors to the third defendant. The grant was revoked (by consent) by an order made on 21 September 2005. The costs of the application were not agreed and were the subject of a later hearing, and further evidence and written submissions after the hearing.

Consideration of the issue of costs has required an examination of the merits of the claim for revocation of the grant. It remains the position of the defendants that the grant was properly made and that, although it became clear that revocation would be a sensible step, the claimants did not have good grounds for an order for revocation against the defendants' wishes. Where a claim has been compromised save as to costs,- it is within the court's discretion whether it will consider the substantive issues, and it was submitted by one of the defendants that I should not do so. However, it seemed to me that the issues here were such as to justify dealing with them, albeit only to determine the incidence of costs. It was also open to question whether there had in truth been a compromise.

The issues require a consideration of the proper procedure to be adopted on applications to probate registries under the Non-Contentious Probate Rules 1987 when it is clear that the circumstances of the case are, in ordinary language, highly contentious. In particular should such application be heard without notice, as happened in this case. Other issues involve the duties of disclosure on such applications, the notification of orders made to interested parties, and the need for impartiality in persons to whom grants of administration are made.

A grant ad colligenda bona is a limited grant of administration, enabling the grantee to safeguard the assets of the deceased within the jurisdiction of the court. It is a useful, sometimes vital, power enabling urgent steps to be taken at a time when it is not yet practicable to obtain a full grant of probate or administration. Applications for such grants are not normally controversial. Although falling within the jurisdiction of the High Court, they constitute "non-contentious" or common form probate business, assigned to the Principal Registry of the Family Division and the district probate registries. Applications must be supported by evidence, but they can be made speedily and following informal consultation with a registry. In uncontroversial cases, this is sensible and desirable.

The facts

Abdul Ghafoor died on 3 January 2005, aged 66, leaving a sizeable estate with assets in England and Wales, Jersey and Pakistan. He had lived, at least primarily, in England and Wales since the early 1960's. There is an issue as to his place of domicile at the time of his death. The claimants, Qamer, Shahid and Amjed Ghafoor, are his sons by his first marriage. The third defendant, Mrs Farooqi, is his daughter by the same marriage. All are resident and domiciled in England. Mr Ghafoor's first marriage was dissolved in 1980 and he remarried in 1986, but after a long period of separation this second marriage was dissolved in 1998. His second wife gave birth to a daughter in 1988 but, according to Qamer's evidence in these proceedings, Mr Ghafoor denied paternity and provided no financial support for her. He does, however, appear to have acknowledged paternity in the decree nisi for the dissolution of his second marriage. A claim by her for financial support under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) has been put forward in correspondence but proceedings have not as yet been issued. Neither she nor Mr Ghafoor's second wife have any direct involvement in the matters relevant to the present case.

Mr Ghafoor made a will on 3 February 1997, by which he left his entire estate to his four children by his first marriage in equal shares and appointed them as his executors. There is no challenge to the validity of the will.

The claimants all hold law degrees from British universities. Qamer is a solicitor and a partner in the firm of Flint Bishop and Barnett, specialising in chancery and commercial litigation. Shahid is a legal advisor with Barclays Bank's litigation and dispute department and Amjed currently works as a legal editor with a leading legal publisher. Mrs Farooqi, the eldest of Mr Ghafoor's children, is married to Dr Azhar Farooqi, a general medical practitioner in Leicester.

Following Mr Ghafoor's death, there was a meeting on 16 January 2005 of the claimants, Mrs Farooqi and her husband, to discuss matters relating to his estate. His affairs were complicated and the claimants' evidence is that they agreed an allocation of tasks among themselves, with Qamer taking on the majority. Qamer says that Mr Ghafoor had always entrusted his legal affairs to him and discussed legal and financial matters with him, so he had greater knowledge of Mr Ghafoor's assets. The evidence shows that Qamer and his brothers have undertaken a substantial amount of work since then.

The main significance of the meeting for present purposes lies in a discussion about the establishment of a trust which would hold all the assets comprised in his estate. The notes of the meeting taken by Shahid record that it was agreed that "all assets including bank proceeds to be held on trust, in accordance with dad's wishes (as per original agreement), assets to be held on trust in equal proportion, decisions to be taken by four siblings." According to Qamer's evidence, this had earlier been agreed between the four of them in Mr Ghafoor's presence. Mrs Farooqi denies that there was any such agreement, either in Mr Ghafoor's lifetime or at the meeting on 16 January 2005.

This dispute of fact does not have to be resolved. Mr Talbot QC on behalf of the Claimants accepted that, whatever the discussions, there was no enforceable agreement for the creation of a trust. Later correspondence from the claimants indicates that Shahid's note does not fully reflect the trust which the claimants had in mind. They envisaged that the claimants and Mrs Farooqi would be life tenants only, with no entitlement to any capital which would be held for their respective children (in what shares is unclear). It would therefore represent a very substantial departure from the terms of Mr Ghafoor's will. Apart from the disputed discussions on 16 January 2005, Mrs Farooqi has not demonstrated any agreement to the proposal for a trust. As Qamer states in his first witness statement:

"What my sister and her husband have been interested in is eventually realising my sister's share of the estate"

That is, of course, her entitlement.

Relations between the claimants and Mrs Farooqi, perhaps not good for some time previously, appear to have deteriorated further within a short time of their father's death. In early March 2005, she instructed SGC, solicitors, to act on her behalf. The first defendant, Richard John Cliff, is a partner in SGC and the second defendant, Karen Nicola Spencer, is a solicitor of 16 years' standing who is employed by the firm. Both specialise in private client work including wills, tax and probate. Mr Cliff filed a caveat on Mrs Farooqi's behalf at the District Probate Registry in Leeds on 7 March 2005, thereby ensuring that a grant of probate would not be made without her knowledge. Mr Cliff has given evidence, without objection from Mrs Farooqi, that she told him on 6 March 2005 that matters leading to probate were not being dealt with fairly or with her full knowledge and that she perceived the claimants to be acting together to exclude her from any part in the administration of the estate.

Shahid was due to be married in Pakistan at the end of March 2005. On 9 March, Shahid, Amjed and their mother flew to Pakistan. On 16 March a petition for a succession certificate was issued in the civil court in Lahore. Shahid and Amjed were named as petitioners and Qamer, Mrs Farooqi and their mother as respondents. It is a procedure governed by the Indian Succession Act 1925, which remains in force in Pakistan for these purposes, and applies to personal property only. The five parties are named as heirs, with each of the sons shown as entitled to a one quarter share and Mrs Farooqi and their mother each shown as entitled to a one-eighth share.

As well as giving evidence of their understanding of the relevant principles of the law of Pakistan derived from discussions with lawyers and judges, the claimants rely on the expert evidence of Hamid Khan, a senior advocate of the Supreme Court of Pakistan and the author of a work entitled The Islamic Law of Inheritance. The defendants do not question his expertise. Mr Khan's evidence is that under the law of Pakistan, succession to the property of a Muslim devolves in accordance with Shari'a principles. These principles apply to all types of property and apply even if the deceased was not domiciled in Pakistan. Where there is an heir or heirs entitled to inherit under the "forced heirship" system, a Muslim may dispose of not more than one third of his or her estate by will. The balance of at least two thirds passes under a system in which a surviving spouse and children have fixed shares. The share of a surviving son is twice that of a daughter and, where there are children, the widow receives a one-eighth share.

The proportionate interests of each of the claimants, Mrs Farooqi and their mother set out in the petition therefore reflect the relevant provisions of the law of Pakistan as explained in Mr Khan's evidence. The inclusion of Mr Ghafoor's first wife is on the basis, asserted in Qamer's evidence, that their divorce in England had no effect in Pakistan. Once the title of the heirs of a deceased Muslim has been established, there is no legal principle which prevents them from agreeing between themselves a different division of property comprised in the estate, including for example an equal division.

The defendants did not file evidence in response to Mr Khan, but Mr Cliff exhibited a letter dated 1 August 2005 from Mrs Farooqi's lawyers in Pakistan. They did not mention the application of Shari'a law to the estates of Muslims, but advised that while succession to immovable property in Pakistan would be governed by the law of Pakistan, irrespective of the deceased's domicile, succession to movable property was governed by the law of the deceased's domicile at the time of death.

There is a dispute on the evidence as to the extent of any conversations with Mrs Farooqi about the succession proceedings while she was in Pakistan for Shahid's wedding. This does not matter for present purposes because Mrs Farooqi's evidence is that she learnt from a family friend a few days after returning to England at the end of March 2005 that succession certificate proceedings had been commenced in Pakistan and that she would receive a reduced share under Shari'a law. She called Shahid and they had an angry and unproductive conversation. She also instructed lawyers in Pakistan to act for her and her evidence is that they obtained a copy of the petition and supplied it to her in mid – May 2005.

Mrs Farooqi regarded the succession certificate proceedings as an attempt by her brothers to reduce her share of the estate. She made this clear in a letter she wrote to Shahid on about 25 June 2005. Shahid replied in a long letter dated 25 July 2005, at a time when the grant of administration was still not known to the claimants. The important feature of the letter is the insistence that the claimants will only agree to dealing with their father's estate in Pakistan on an equal basis if all the assets of his estate on a worldwide basis are settled on the terms of the proposed family trust. The claimants' position was clearly stated in the last paragraph of the letter:

"It is on this basis that everyone can have an equal share of dad's estate. If you do not accept these conditions dad's estate will be dealt with according to his will after all his liabilities have been settled and the remaining estate will be dealt with according to Islamic law. "

This position was reiterated in later correspondence. Equally clear was Mrs Farooqi's position that she should receive a full share of the assets in Pakistan as well as elsewhere.

I turn to the circumstances in which the application for the grant of administration was made. Mr Cliff was told at the end of March 2005 that proceedings had been commenced in Pakistan for the equivalent of probate. Mrs Farooqi told him that she had not been informed in advance of the proceedings and that she felt that this was a further instance of the claimants taking steps to exclude her from her share of the assets under the will. She sent him a copy of the petition on 15 May 2005.

A number of aspects of the petition concerned Mr Cliff, including that no mention was made of Mr Ghafoor's will, that his first wife was named as his widow, that the division between the beneficiaries was at odds with the will and that the claimants and Mrs Farooqi were stated to be resident in Lahore. In his witness statement in these proceedings Mr Cliff says:

"These points of concern about the Petition were such that it appeared that the deponent Shahid Raza Ghafoor had deliberately and therefore dishonestly made inaccurate statements within it."

Mr Cliff undertook some research on the internet into Pakistani law which led him to conclude that a court in Pakistan would recognise an English grant of representation under section 44A of the Civil Procedure Code. This confirmed advice given by Habib Bank in Pakistan in a letter to Amjed dated 26 January 2005, a copy of which Mrs Farooqi had supplied to Mr Cliff. Mrs Farooqi was concerned that the petition in Pakistan, which was due for a hearing on 4 June 2005, should not proceed without the court being aware of the position in England. Accordingly, Mr Cliff suggested that an application for a grant of letters of administration ad colligenda bona, in her name, could be made to preserve the assets of the deceased. Mrs Farooqi's lawyer in Pakistan confirmed that such a grant would at least hold up the proceedings in Pakistan.

Mr Cliff wrote to Deputy District Registrar Burch (the Registrar) at the Manchester District Probate Registry (the Registry) on 18 May 2005. In his letter, he stated as follows (including the various mistakes):

"It appears that the 3 brothers of my client have made an application for a succession certificate and the evidence seems to suggest that they dishonestly provided information to the Pakistani Court with a view to defeating the position with regard to the English Will.

Further to 3 sons have failed to communicate any information to our client and we are concerned that steps may be taken to administer and distribute the estate without first obtaining a proper Grant of Representation. Because of the shortness of time and because of the imminent hearing in Pakistan we wish to seek an Order of the Court for a limited Grant of Probate ad Colligenda Bona issuing a limited Grant to enable our client to properly deal with the administration of the estate both in the United Kingdom, Jersey and Pakistan.

It is our clients wish and intention that the assets of the deceased be properly accounted for an presently the evidence suggests that if the 3 sons are allowed to continue inter meddling with the estate without before applying for a Grant of Probate that there is a risk that assets may be misappropriated of distributed without proper lawful authority."

During Mr Cliff's absence from his office from 20 May to 30 May 2006, Mrs Spencer dealt with the matter. A probate officer at the Registry told her that the Registry would like to see the will deposited in court by subpoena, followed by an application for grant in the normal way. Mrs Spencer drafted the relevant documents, including an affidavit in support of an application for the grant of administration ad colligenda bona, to await Mr Cliff's return to the office. Mr Cliff was told by Mrs Farooqi's husband on 7 June 2005 that the Pakistani proceedings had been adjourned to 20 June, which he viewed as the deadline for the grant to be made. He spoke to the Registrar, who told him that he would prefer a solicitor to be the applicant, rather than Mrs Farooqi, and he also repeated the earlier indication that he wished to see the original will deposited with the Registry, by subpoena if necessary, so that an application for the grant of probate could be dealt with in due course.

On 16 June 2005 Mr Cliff swore an affidavit in support of the application for the grant of administration ad colligenda bona. In it he stated that he was instructed on behalf of Mrs Farooqi in connection with the administration of the estate but made clear that he was making the application for a grant to himself. He exhibited the will and, after referring in general terms to the estate, stated:

"My sons [sic] have refused to cooperate with my client or me in the administration of the Estate. They have refused to provide details of the estate or involve me in the work that they are carrying out. I believe that the sons are intermeddling in the Estate without applying for a Grant. I believe that the sons may be attempting to misappropriate or distribute assets without lawful authority."

He exhibited the petition for a succession certificate and related documents and stated that they "suggest that the sons have dishonestly provided information to the Pakistani Court with a view to defeating the position regarding the English will."

Mr Cliff sent the affidavit to the Registrar under cover of a letter in which he stated:

"It appears there is a significant risk that the estate of the deceased may suffer if a Grant is not made quickly. I am particularly concerned about the breakdown in communication between the executors, the action which has been taken in Pakistan without reference of my client, and also the pending matters of cases undertaken by Mr Ghafoor prior to his death where Solicitors are awaiting instructions.

I accept that a subpoena to bring the Will to Court will be required in due course and I propose to undertake this once the matter of the ad Colligenda Bona has been dealt with. As I mentioned on the telephone the case in Pakistan has been adjourned until the 20^th June 2005 and it would be ideal if we could present to the Pakistani Court an Order of the English High Court which is binding in this jurisdiction."

On the basis of this evidence and information, the Registrar made an order on 17 June 2005 for the grant of letters of administration ad colligenda bona to Mr Cliff "until further representation be granted." On that day Mr Cliff's office faxed a letter to the court in Lahore, informing the court of the application for a grant and requesting an adjournment of the hearing of the petition set for 20 June 2005. On 20 June Mrs Farooqi told Mr Cliff that the hearing had been adjourned to 25 July 2005.

The Registry informed Mr Cliff that it would be preferable for two solicitors to be appointed administrators, in view of the possible interest of a minor. Mrs Spencer agreed to be joined in the appointment and the grant in favour of Mr Cliff and Mrs Spencer was made on 1 July 2005. It was received by Mr Cliff on 4 July 2005 and in his evidence he states that he explained to Mrs Farooqi that:

"in my capacity as administrator I must be seen to act impartially and whilst I was glad for her input in matters I would not be advising her as executrix or beneficiary if I considered there to be any point of conflict."

On 5 July 2005, Mr Cliff sent a copy of the order of 17 June 2005 to Mrs Farooqi's lawyers in Pakistan. It appears from the evidence that the only other steps taken by Mr Cliff or Mrs Spencer as administrators were (a) to write to HSBC in Jersey requesting account balances, partly with a view in due course to filing an Inland Revenue account IHT 200, (b) to deal with correspondence from solicitors acting for a liquidator making some enquiries and (c) to correspond with solicitors acting for the potential claimant under the 1975 Act. This is consistent with the overriding purpose of the appointment being to halt or slow down the proceedings in Pakistan. They took no steps with a view to lodging the original will with the Registry or with a view to obtaining a grant of probate. They deliberately did not inform the claimants of the application or of the grant. As to this Mr Cliff explains in evidence in these proceedings, which is confirmed by Mrs Farooqi:

"Although I have not been acting for Mrs Farooqi, as such, since I was appointed administrator I agreed with her that I would not inform the Claimants about the issue of the grant to me and the Second Defendant until she told me to do so. I believe that she hoped that she would still be able to deal amicably with her brothers. I was aware that Mrs Farooqi was going to be on holiday for the first two weeks of August and I intended to discuss with her what steps she might need to take next upon her return from holiday. In fact the Claimants have found out about the grant by other means and have commenced the present proceedings."

Qamer Ghafoor first learnt of the grant on 29 July 2005, as result of entering a standing search. The claimants had never heard of Mr Cliff and Mrs Spencer or their firm and knew nothing about their involvement for Mrs Farooqi. On that day Qamer contacted SGC and spoke first to Mrs Spencer and later to Mr Cliff. Mr Cliff sent him a copy of the grant but refused to supply a copy of his affidavit. Qamer successfully applied to the Registry for a copy.

The present proceedings

On 9 August 2005 the claimants issued the claim form in the present proceedings, seeking revocation of the grant to Mr Cliff and Mrs Spencer and other relief. The same relief was sought by an application notice issued on the same day. The grounds on which the revocation was sought, as set out in a witness statement of Qamer, may be summarised as follows:

i) Mr Cliff's affidavit materially misrepresented the position and gave the court a completely misleading impression that the estate was at risk.

ii) Allegations were made without proper investigation and with a total disregard for the claimants' professional integrity. Mr Cliff knew that Qamer was a practising solicitor.

iii) No notice was given either of the application or of the issue of the grant.

iv) Mr Cliff proceeded on false assumptions as to the Pakistani law of succession and the purpose of the proceedings in Pakistan, and failed to make proper enquiries on either matter.

v) Mr Cliff and his firm were not independent, but were Mrs Farooqi's solicitors. As such, in the circumstances of this case, they were not appropriate persons to be appointed and the claimants had no confidence in them.

vi) The main purpose of the appointment was to advance Mrs Farooqi's position.

vii) Mr Cliff had dealt with the issue of domicile in a cavalier way.

The application came before Etherton J on 12 August 2005. The claimants and Mr Cliff and Mrs Spencer were represented by counsel. Directions for evidence were given, on undertakings by Mr Cliff and Mrs Spencer, first, not in the meantime to act upon the authority of the grant or to represent themselves as entitled to do so and, secondly, to disclose correspondence written or received by them as grantees and notes of conversations in that capacity.

In his witness statement made on 19 August 2005, Mr Cliff gave no sign of agreeing to a revocation. He was concerned that if there were simply a revocation there would be a void in the representation of the estate. He expressed concerns as to the way in which Qamer had conducted matters since discovering the grant and stated that:

"These proceedings and the interim application herein would appear to have been issued and made prematurely in the absence of any danger or threat to the Deceased's estate and without any appropriate pre-action co-operation or correspondence which might have enabled litigation to be avoided. "

In her witness statement Mrs Spencer gave an account of the matter so far as it was within her knowledge. She referred to Qamer's "tone and demands" in telephone conversations with her and continued:

"I believe that the application of the claimants is vexatious and intended to bully and subdue his sister who has dared to stand up to him and his brothers! Mr Q. Ghafoor had no desire to settle the matter without proceedings."

She stated that she would concur with decisions made by Mr Cliff and the court regarding her appointment, and ended by asking that the application be refused and the claimants "personally penalised in costs on an indemnity basis."

The application had not been served on Mrs Farooqi in time for the hearing on 12 August 2005. She was not represented at the hearing. She instructed new solicitors and filed a witness statement dated 19 August 2005. Her position was that the grant should remain in place, at least pending agreement or proceedings as to the future administration of the estate, and the claimants should pay the costs of the application. The claimants' position, stated by Qamer in his evidence in reply, was that the grant should be revoked and the executors named in the will should proceed to deal with matters.

On 13 September 2005 Mr Cliff and Mrs Spencer wrote open letters to the solicitors for the other parties, offering to apply to revoke the grant to them provided that their costs were paid out of the estate. This was rejected by the claimants.

The claimants' application came before me on 21 September 2005. The parties' positions as stated in their skeleton arguments were as follows. The claimants sought immediate revocation of the grant. Mr Cliff and Mrs Spencer did not seek to maintain the grant but repeated the offer made in correspondence. At the same time, they put forward reasons why the existing grant was of value and why the absence of representation would be detrimental to the estate. Mrs Farooqi accepted that the claimants could not work with Mr Cliff and Mrs Spencer and that it was therefore not sensible for their grant to continue. She suggested that she and the claimants should apply for probate, with a preference on her part for an attorney to act in her place, given the tensions between the parties. She also required that independent solicitors should be appointed to act for the executors in obtaining probate and in the administration of the estate. She sought an order which would require the claimants and her to apply for probate, failing which the court would appoint administrators of the estate.

It was therefore apparent that there was at least common ground against the maintenance of the existing grant of administration. Sensibly the parties reached agreement in the course of 21 September 2005, embodied in an order of that date. The claimants and Mrs Farooqi agreed that in the administration of the estate she would act by an attorney (a partner in her solicitors) and would bear the costs of doing so. The claimants and Mrs Farooqi undertook to use their best endeavours to apply for and obtain a grant of representation in the estate in England and Wales as soon as reasonably practicable. The grant in favour of Mr Cliff and Mrs Spencer was revoked. The parties were unable to agree on the costs of the application which were reserved to be heard by me at a later date.

The application for costs

The claimants apply for an order that their costs of the application be paid by the defendants, with the primary liability falling on Mr Cliff and Mrs Spencer, such costs to be assessed on the indemnity basis. Mr Cliff and Mrs Spencer resist that application and apply for their costs to be paid out of the estate. Mrs Farooqi resists the claimants' application against her and applies for her costs to be paid out of the estate, with no objection to the claimants' costs also being paid out of the estate. Alternatively, she applied for an order that her costs be paid by Mr Cliff and Mrs Spencer and that they should also pay the claimants' costs.

The claimant's submissions, in brief summary, were as follows:

i. Their application was to revoke the grant of administration and they have succeeded, against the opposition (until a late stage) of the defendants.

ii. The underlying purpose in obtaining the grant was not the protection of Mr Ghafoor's estate in this jurisdiction, but the illegitimate purpose of advancing Mrs Farooqi's position in the proceedings commenced in Pakistan.

iii. The grant was obtained on the basis of serious misrepresentations contained in Mr Cliff's affidavit and letters.

iv. Allied to the last two points, the application for the grant was an abuse of a without notice procedure, involving a serious breach of the obligation to make full and frank disclosure to the court.

v. The defendants kept the grant secret from the claimants without any good cause.

vi. Mr Cliff and Mrs Spencer as administrators failed to act with the independence which was required of them, particularly in complying with Mrs Farooqi's instructions not to inform the claimants of the grant.

vii. An order that the defendants' costs should be paid out of the estate was unjustified, particularly as three-quarters would in effect be borne by the claimants.

Mr Cliff and Mrs Spencer submitted as follows:

i. In applying for and obtaining the grant of administration they acted honestly, reasonably and properly to protect their client's interests. No other course was open to them.

ii. Their action was designed to do no more, and did no more, than preserve the assets of the estate. They reasonably believed that movable property in Pakistan, to which the succession certificate proceedings related, devolved according to the English will.

iii. There is no requirement under the Non-Contentious Probate Rules 1987 for notice to be given of either the application for a grant or the grant itself.

iv. Mr Cliff's affidavit in support of the application was unhappily phrased in some respects, but fell far short of a material misrepresentation.

v. The application for revocation should have been made to the Registrar. The application to the High Court was a disproportionate step, involving unnecessary costs.

Mrs Farooqi's submissions were as follows:

i. She did not apply for letters of administration. She had sought advice from solicitors, following which they applied for and were granted letters of administration. They did not do so as her attorneys.

ii. Most of the claimants' complaints were levelled at Mr Cliff and Mrs Spencer.

iii. The grant had enabled the estate to be represented by reputable and experienced solicitors.

iv. Instead of applying to the High Court, the claimants should either have applied for a grant of probate or applied to the Registrar for revocation.

v. There was no urgency in the application, and the only contact with Mrs Farooqi before it was issued was one telephone call to her on holiday in Malaysia.

vi. The outcome of the application was a compromise, with no party succeeding.

Domicile

Before dealing with the parties' other submissions in detail, I shall address two points. First, there is as I have mentioned an issue as to Mr Ghafoor's domicile of choice at the time of his death. This issue does not of course arise for decision on this application and I propose to say nothing directly about it. It is significant for at least three purposes: any claim under the 1975 Act, the scope of a grant of probate in England and the extent of liability to inheritance tax, although as to the last of these points there would additionally be the question of deemed domicile. The question of domicile is material to a grant of probate or administration and must be stated in the applicant's oath, unless otherwise directed by a district judge or registrar: rule 8.2 Non-Contentious Probate Rules 1987 (NCPR). Mr Cliff's oath stated that Mr Ghafoor died domiciled in England and Wales. Mr Cliff explains in his evidence that Mrs Farooqi told him that Mr Ghafoor had lived in the United Kingdom since 1962 and therefore believed that his domicile of choice at the time of his death was England and Wales. This is not disputed by Mrs Farooqi, although she states that one of the reasons for obtaining the limited grant of administration was to resolve the issue of domicile. The evidence does not show that Mrs Farooqi alerted Mr Cliff to any real issue as to domicile, and her own evidence is very much to the effect that she believed that England and Wales was his domicile of choice. In my view Mr Cliff cannot be criticized for forming his view as to Mr Ghafoor's domicile. However, one of the consequences of the lack of notice to the claimants of both the application for the grant and the grant itself was that they were not able to bring to his attention, and to the attention of the Registry, their views on the issue and the facts which they considered to be of importance.

The proceedings in Pakistan

Secondly, on the basis of the expert evidence before the court, the petition for a succession certificate was correct, under the law of Pakistan, as to both procedure and substance. Mr Khan's evidence shows that under the law of Pakistan Mr Ghafoor's will does not dispose of his real or personal estate in Pakistan and that his legal heirs are entitled to his estate in Pakistan in the proportions set out in the petition. The slight qualification to that is a possible uncertainty as to the status of Mr Ghafoor's first wife under the law of Pakistan, but that does not affect the underlying principle. On this basis, therefore, the claimants are legally entitled to require the administration of Mr Ghafoor's estate in Pakistan in accordance with the law of Pakistan, just as Mrs Farooqi is legally entitled to the administration of his estate in England and Wales (and elsewhere if domiciled here at the time of his death, subject to any local laws) in accordance with English law and his will. They could all agree to alternative arrangements, as the claimants have suggested with the proposal for a trust, but none of them is bound to do so.

It is nonetheless not surprising that Mr Cliff was alarmed by the terms of the succession petition. While he would expect that real estate would devolve according to local law, it is unusual for personal estate not to be governed by the law of the deceased's domicile at the time of death.

Mr Cliff did not himself take advice on the law of succession in Pakistan, but he asked Mrs Farooqi to refer the proposal to obtain a limited grant of administration to her lawyers in Pakistan. Their advice was that an order of the English High Court would be recognised and that it would at least hold up the petition in Pakistan. There is no evidence that they gave any advice on the law of succession at that stage. It is however true that in their letter dated 1 August 2005 they advised that the personal estate in Pakistan of a person domiciled in England would devolve in accordance with English law. As with the question of domicile, but perhaps more obviously, it is the absence of notice to the claimants which meant that they were not able to put their evidence and case to the Registrar. He was thereby deprived of a balanced view of the relevant considerations.

I turn to deal with the other submissions of the parties. The claimants make a number of very serious criticisms of the application for the grant, the way in which it was made and the conduct of the administrators after the grant.

Purpose of the grant

First, the claimants submit that the application was made for an illegitimate purpose. It is clear that the purpose was to intervene in the petition in Pakistan, as appears from Mr Cliff's letter to the Registrar and his letter dated 2 August 2005 to Qamer, as well as from his witness statement and the submissions on his behalf. The claimants correctly point out that the grant of administration extended only to assets within the United Kingdom, as the Registry made clear to Mrs Spencer in a telephone conversation in May 2005. It could not give Mr Cliff and Mrs Spencer authority to appear in the proceedings in Pakistan and it did not in terms confer power to seek to do so. I do not regard this as a necessarily fatal objection. If it was otherwise proper to seek to preserve the assets in Pakistan for the benefit of the beneficiaries under the will, a grant of administration would give the administrators a standing which might be recognised by the court in Pakistan or would, as Mr Cliff intended, at least draw the attention of that court, in a manner which it might recognise, to the English estate. On the basis of the expert evidence of Pakistani law, it does not appear that these are assets available for the beneficiaries of the English will as such. The substantial purpose of the grant was not therefore a proper purpose. But I accept that the defendants did not appreciate at the time that this was the case. I do not therefore accept the allegation that the grant was sought simply to secure a tactical advantage for Mrs Farooqi.

The evidence in support of the application

Secondly, the claimants submit that Mr Cliff's affidavit in support of the application contained serious misrepresentations and failed to make full and frank disclosure of relevant facts. These are serious criticisms in any case, but the importance of accurate evidence is particularly acute on an application without notice, and the duty of disclosure on such an application has been stressed by the courts on many occasions: see, for example, Fitzgerald v Williams [1996] QB 657 at 667-668 per Sir Thomas Bingham MR. The principles are well-established and well-known on applications without notice for injunctions and other interim relief, but they are fundamental to the proper functioning of the court's process on any application without notice. It is of course the very fact that the application is made without notice to other interested parties which makes these principles so important. Other parties do not have the opportunity to correct or supplement the evidence which has been put before the court.

There is no reason why these principles should not apply to applications under the Non-Contentious Probate Rules, nor was it suggested on behalf of the defendants that they do not do so. In Shepherd v Wheeler [2000] WTLR 1175, Lawrence Collins QC (sitting as a deputy judge of the Chancery Division) applied these principles to an application without notice to the Probate Registry for the appointment under section 116 of the Supreme Court Act 1981 of an alleged creditor as administrator of the estate of a deceased who had died intestate. He cited Re Leguia (No. 2) (1936) 155 LT 270 in which the court revoked a grant of administration with the will annexed to judgment creditors of the deceased, on grounds of non-disclosure. Lord Wright MR said:

"But the President or probate judge has discretion either to take or to refuse to take the course [of passing over an executor], and when he is acting on an ex parte motion or petition, he is entitled, according to the universal rule applicable to all ex parte applications, but peculiarly applicable to a matter of this gravity, to have from those who ask him to exercise his discretion the very fullest possible information and disclosure of all relevant circumstances. It may be that there was not such full disclosure of all relevant circumstances owing to a perfectly bona fide failure to appreciate its importance, and I am willing to assume that in the present case that was so; I have no reason to say the contrary. But, however well-intentioned the applicants may have been, if they had knowledge or information of relevant circumstances, it was their bounden duty to put that as fully as they could before the President. "

Romer LJ said:

"Whenever a party applies ex parte to a court of justice, it is essential that the applicant should state every relevant fact within his knowledge. The importance in the interests of the administration of justice of maintaining that rule in its entirety can hardly be exaggerated. An applicant who succeeds in obtaining an order without strictly observing that rule cannot complain if the order is subsequently discharged and he is ordered to pay the whole of the costs which have been occasioned by his application. "

The statements made in Mr Cliff's affidavit which are criticised as misrepresentations are as follows. First, Mr Cliff stated that the claimants had refused to cooperate with Mrs Farooqi or with him in the administration of the estate and had refused to provide details of the estate or involve him in the work that they were carrying out. As regards Mrs Farooqi, her instructions to Mr Cliff were that the claimants were not supplying information to her or involving her in the administration of the estate. This is contested by the claimants, but on this application it is impossible to determine the true position. What was, however, entirely untrue was that the claimants had refused to cooperate with Mr Cliff or to provide information to him or involve him in their work. As Mr Cliff accepts, he had not contacted them and they were unaware of his involvement. Mr Cliff has explained in his evidence how his affidavit came to be drafted and sworn with these untrue statements. I accept that a mistake was made and that he did not deliberately mislead the court. However, he clearly did not read the affidavit carefully before swearing it and he is responsible for what it states. In my view, it was a material misrepresentation. Looked at objectively, a statement by the solicitor to one executor that the other executors are refusing to provide information to the solicitor could be expected to have a bearing on the decision to grant letters of administration. As regards any failure to provide information to Mrs Farooqi, Mr Cliff had no evidence beyond the instructions of his client, but his affidavit did not make this clear.

Secondly, Mr Cliff expressed his belief that the claimants were intermeddling in the estate without applying for a grant and that they might be attempting to misappropriate or distribute assets without lawful authority. No evidence was given to support this belief, although Mr Crawford on behalf of Mr Cliff submitted that it was linked to the allegations made later in the affidavit as regards the petition in Pakistan. Certainly apart from the petition, Mr Cliff had no basis for these statements which were of critical importance to the application.

Thirdly, Mr Cliff alleged that the petition in Pakistan suggested that the claimants had dishonestly provided information to the court in Pakistan with a view to defeating the position under the English will. I accept that this is how the petition appeared to him and Mrs Farooqi at the time and that understandably they were very concerned about it. However, on the basis of the evidence now before the court, it was a gross misstatement: the petition was properly made to the court in Pakistan and did not involve either the dishonest provision of information or an attempt to defeat the English will. As already mentioned, it does not appear that Mr Cliff had taken any advice on the applicable law of succession in Pakistan. He had time to do so, as he received a copy of the petition on 15 May 2005 and did not swear his affidavit until 16 June 2005. I accept that Mr Cliff did not intend to mislead the registrar, but the fact remains that these highly damaging statements were untrue. Like the earlier allegations of intermeddling and attempted misappropriation, they went to the heart of the application for a grant.

Fourthly, Mr Cliff alleged that the professional negligence claim made by Mr Ghafoor against his former solicitors needed attention, and in his covering letter of 16 June 2005 to the Registrar he had said that the solicitors for claimant in those proceedings were awaiting instructions. There is no evidence of any basis for these statements. Mr Cliff had engaged in correspondence with Dolmans, the solicitors acting on the claim, but Dolmans' only concern at that stage was to understand Mr Cliff's standing to make enquiries of them. Qamer's unchallenged evidence is that before his father's death he had liaised with Dolmans in relation to the claim and he continued to do so after Mr Ghafoor's death.

The claimants allege further that material facts were not disclosed in the affidavit. First, there is no mention of the meeting on 16 January 2005, the statement of assets and liabilities tabled at that meeting and the allocation of tasks agreed among the family members. Mrs Farooqi disputes that there was an allocation of tasks and denies seeing either the statement of assets and liabilities or the notes of the meeting until exhibited in these proceedings. I cannot resolve this dispute on this application and cannot therefore conclude that there was in this respect non-disclosure of material facts. Secondly, Mr Cliff did not disclose that Qamer was a practising solicitor, although he accepts that he knew this to be the case. In my view, he should have disclosed it. If on an application without notice allegations of dishonesty and misappropriation are made, it is to my mind material for the court or registrar to know that the person in question is a practising solicitor. It is a fact which might reasonably have a bearing on whether the order or grant should be made without notice. Once again, I accept that Mr Cliff did not deliberately suppress a fact which he knew was material, but in my view his judgment in deciding not to disclose it was wrong. Thirdly, Mr Cliff failed to disclose the basis of his assertions of non-cooperation and intermeddling and the enquiries, if any, which he had undertaken in relation to the position under the law of Pakistan. In my view, he should have done so, in order to provide, as Lord Wright MR put it, "the very fullest possible information and disclosure of all relevant circumstances."

Mr Cliff accepts that his affidavit contained errors. The affidavit was originally drafted to be sworn by Mrs Farooqi but, when the Registrar told him on 7 June 2005 that he preferred a solicitor to be the administrator, he asked Mrs Spencer to re-draft the affidavit which she did on 16 June 2005. By then the matter was urgent, with the adjourned hearing of the petition fixed for 20 June 2005. Mr Cliff states in his first witness statement in these proceedings that he is "(a)shamed to say that I assumed it to be correct. I now know that it contained errors about which I am deeply embarrassed." He accepts that there had been no refusal to cooperate with him (because there had been no contact with him) and he says that the references to intermeddling and misappropriation should have been described as the beliefs of Mrs Farooqi as conveyed to and believed by him. Beyond that he stands by the evidence and grounds for the application. It was submitted on his behalf that while the affidavit was re-drafted hastily and inadequately, and was unhappily expressed in some respects, it was substantially correct and contained no material misrepresentations. It was suggested that the claimants' reaction when they discovered the grant and the evidence on which it had been made was simply a matter of amour propre.

I am unable to accept this view of the matter. On the evidence before me, the allegations of a failure to cooperate or provide information to Mr Cliff, intermeddling, attempted misappropriation, dishonest provision of information to the court in Pakistan and an attempt to defeat the English will are wrong and without foundation. They constituted the evidence in support of the application and without them the grant could not properly have been made. They were material misrepresentations of a most serious character. In this connection it is relevant that Qamer is a practising solicitor. Not only is that relevant to an assessment of the allegations, but the making of the allegations has caused him professional embarrassment, as his evidence makes clear. Mr Cliff was not deliberately misrepresenting the position, but his affidavit should have clearly set out the facts as known to him. Where allegations were based solely on the belief and instructions of his client, he should have made it clear. He had time to investigate the position under the law of Pakistan and he should have set out the steps taken by him in that and the advice provided to him, preferably in a form which complied with rule 19 NCPR.

The submissions on behalf of Mrs Farooqi correctly accepted that Mr Cliff's affidavit contained strong criticism of the claimants and it was only natural for them to react strongly. She has explicitly accepted that the allegations of dishonesty and intended misappropriation should not have been made and that the claimants were wrongly criticised in an affidavit which contained serious errors. I am bound to say that I am surprised that this is not also accepted by Mr Cliff.

Lack of notice of the application or the grant

The third ground on which the claimants submit that they were entitled to a revocation of the grant and to their costs against the defendants is that no notice was given to them either of the application or of the grant itself.

In my judgment the grant of letters of administration in this case should not have been made without notice to the claimants. My reasons are as follows. First, it was clear to Mr Cliff from his instructions, and it was clear to the Registrar from Mr Cliff's affidavit and letters, that this was a highly contentious matter. Secondly, Mr Cliff was making very serious allegations of dishonesty and misappropriation. Thirdly, the claimants were three out of the four executors and the grant, if made, would interfere with any steps being taken by them to deal with the estate. Fourthly, it was not a case in which notice would frustrate the application, in contrast for example to many applications for freezing and search orders. Fifthly, the urgency was not such as to preclude notice. Mr Cliff received a copy of the petition on 15 May 2005 and although he was in contact with the Registry on 18 May 2005 he did not make the application until a month later. Even if time had been short, informal notice could have been given, as is the usual practice on applications in the High Court and the County Court.

As against these considerations, it is said on behalf of Mr Cliff and Mrs Spencer that applications for grants are normally made without notice. Not only is this the usual practice, but both Tristram and Coote's Probate Practice (29^th ed. 2003) at 11.343 and Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (18^th ed. 2000) at 24-48 state that they should be made without notice. This is not specified in the relevant rule (rule 52(b) NCPR) but it is pointed out that rule 27(4) provides that a grant of administration "may be made to any person entitled thereto without notice to other persons entitled in the same degree" (my emphasis). This power of appointment without notice is discretionary, and in the case of a known dispute, there will be a determination inter partes (rule 27(6) and (8)).

There is no requirement that the application, still less the grant, be made without notice. On the contrary, the Rules make provision for notice to be given in an appropriate case. Rule 61(1) provides that a registrar may require any application to be made by summons and rule 66(1) provides that the registrar may direct service of the summons on such person or persons as he may direct. Further, the registrar is given power by rule 61(1) to require the application to be made to a judge and rule 7(1)(b) provides that no grant is to be made by a registrar in any a case in which it appears to him that a grant ought not to be made without the directions of a judge or a district judge. In view of the particular circumstances of this case, it was in my view a candidate for either of these procedures and, if the claimants had been able to respond to Mr Cliff's affidavit, it would certainly have been suitable for a hearing by a judge or district judge.

In the majority of cases, applications to the registry, including those for a grant of administration ad colligenda bona, are not contentious and are properly and sensibly made without notice. However, I am of the clear view that notice of the application in this case should have been given to the claimants in view of the particular circumstances of this case. Mr Cliff specifically considered whether the application should be made without notice and concluded that it should be because of "the particular circumstances" (his letter dated 18 May 2005 to the Registrar). Nevertheless, it would not be right to be over-critical of Mr Cliff for making the application without notice. He followed the accepted practice, as stated in the leading works, and the Registrar was content that it should proceed on that basis.

Where Mr Cliff and Mrs Spencer are undoubtedly open to criticism is their failure after the order of the Registrar, and the subsequent grant of letters of administration, to give any notice of the order or grant to the claimants. The absence of any express requirement in the Rules does not provide a good reason. The executors should have been informed as soon as possible, particularly as they might be taking steps in relation to the estate. They were in any event the obvious source of information on assets in the estate, which it was the administrators' duty to safeguard. Further, it is clear that the Registrar proceeded on the basis that they would soon be informed. Mr Cliff told the Registrar in his letter dated 17 May 2005 that the application would be followed by a citation to produce the original will and an application under section 116 of the Supreme Court Act 1981 to pass over the executors. The Registrar told Mr Cliff in a telephone conversation on 7 June 2005 that he wished to see the original will, which he had been told was in the claimants' possession, deposited with the Registry so that an application for a grant of probate could be dealt with in due course and he advised a subpoena should be issued to the holders of the will. In his covering letter dated 16 June 2005, Mr Cliff said:

"I accept that a subpoena to bring the Will to Court will be required in due course and I propose to undertake this once the matter of the ad Colligenda Bona has been dealt with."

Mr Cliff did not take any steps to issue a subpoena to bring in the will, but instead acceded to Mrs Farooqi's request that he should not inform the claimants until after her return from holiday in mid-August. I have set out above the paragraph from his witness statement in which he explains his reasons for this course. In my judgment, his decision was wrong and the suggested reason that Mrs Farooqi wished for an opportunity to deal with the matter amicably did not provide good grounds for not bringing the grant to the immediate notice of the claimants. Mrs Farooqi now accepts that this decision was wrong.

Independence

Mr Cliff's conduct in this respect is a central part of the claimants' fourth ground for the revocation of the grant, namely the lack of independence displayed by him and by Mrs Spencer and the claimants' lack of confidence in them. The first point made by the claimants is that, as Mrs Farooqi's solicitors, Mr Cliff and Mrs Spencer in any case lacked the independence appropriate for this grant. I agree with this view. In an uncontroversial case, the appointment of an interested person or his solicitor may well be very sensible. In a highly contentious case such as the present, where there appear to be serious divisions between the executors/beneficiaries and one is accusing the others of dishonesty and misappropriation, the need for an independent appointment on this application is in my view clear. Those interested in the estate are entitled to have confidence in the impartiality of the person appointed to represent the estate. The solicitor for one of the parties involved would not reasonably be viewed as independent or impartial.

More important is that Mr Cliff's subsequent failure to notify the claimants, in deference to Mrs Farooqi's request, vividly illustrates the danger in making the grant to a person such as Mr Cliff who lacked the requisite degree of independence. He was conscious of his duty of impartiality, as the evidence of what he told Mrs Farooqi shows, but he set that aside when he acceded to her request. His letter dated 2 August 2005 to Qamer similarly showed that he continued to regard Mrs Farooqi as his client from whom he would seek instructions.

The claimants draw attention to other aspects of Mr Cliff's conduct at this time. From April 2005 he was in contact with the solicitors for the potential claimant under the 1975 Act. In an e-mail dated 28 July 2005 he told them that he applied for the grant "because there seemed to be evidence that the sons were taking steps to administer the estate in a way which may prejudice those who would benefit". At that time he had not been in contact with the claimants who still knew nothing about the application or the grant. In the same e-mail and in response to the other solicitors' question as to whether he had had any reaction from the claimants, he stated: "I have had no feedback from the sons yet". Clearly implying that he had informed the claimants, this was simply untrue.

Conclusion on the right to revocation

In my judgment, in agreeing to the revocation of the grant of administration, Mr Cliff and Mrs Spencer were bowing to the inevitable. The very serious allegations in Mr Cliff's affidavit were not sustainable, and their lack of independence, amply shown by their agreement not to notify the claimants of the grant for several weeks at least, in any case made their position as administrators untenable. In my judgment, the claimants were entitled to the order for revocation which they sought. On this basis, the claimants would in the ordinary course be entitled to an order for costs against the defendants or some of them. A number of submissions are made as to why this usual order should not follow. I will consider first those made on behalf of Mr Cliff and Mrs Spencer.

Specific submissions on costs by Mr Cliff and Mrs Spencer

They submit, first, that in applying for the grant of administration they acted honestly, reasonably and properly to protect their client's interests, and that no other course was open to them. In this context it is important to bear in mind that this is not an application by the claimants for a wasted costs order against a party's solicitors. Mr Cliff and Mrs Spencer are themselves parties. They were the applicants for the grant and they were necessary parties to the present application, which they strongly resisted until mid-September 2005. Whether or not they were acting reasonably in their client's interests is not in point when considering their liability in costs to the claimants. In any event, although not acting with deliberate impropriety, they should in my view have given notice of their application to the claimants and their subsequent failure to give them notice of the grant was neither reasonable nor proper. Further, alternative courses were open to them. Most obviously they could have written on Mrs Farooqi's behalf to the claimants. They in fact prepared a draft letter at an earlier stage but never sent it. Instead, over 3 months passed from their first instructions in early March 2005 to their application in mid-June 2006 without any contact with the claimants. In the same period, they were communicating with the solicitors for the potential claimant under the 1975 Act and with the solicitor acting on the professional negligence claim. It may be that Mrs Farooqi's instructions were not to communicate with the claimants, but as applicant for the grant Mr Cliff had his own responsibilities and he should in my view have made contact with the claimants.

Secondly, Mr Cliff and Mrs Spencer submit that their action did no more, and was designed to do no more, than preserve the assets of the estate. I accept that their actions were motivated by these considerations but, on a true view of the facts which might have become apparent if they had given notice to the claimants either before the application or shortly after the grant, their actions were unnecessary and unjustified. Their lack of bad faith does not provide a ground for not awarding costs against them. A similar point is made by Mrs Farooqi, that it is common ground that the estate needs representation and, since the claimants were not pursuing a grant of probate, the grant to Mr Cliff and Mrs Spencer allowed the estate to be represented. Leaving aside the progress being made with a view to obtaining a grant of probate, on which the evidence conflicts, any need for representation did not justify an application without notice or the evidence on which the application was made.

Thirdly, they submit that the claimants adopted the wrong procedure in applying to a High Court judge for revocation of the grant. The application should have been made to the Registrar, which would have been very much cheaper and simpler. I do not accept this submission. While rule 41(1) NCPR empowers a registrar to revoke a grant, rule 41(2) provides that except on the application or with the consent of the grantee (i.e. Mr Cliff and Mrs Spencer) the power is to be exercised "only in exceptional circumstances". The circumstances of this case may well qualify as exceptional, but I do not see that the claimants were required to assume that additional hurdle. In any case, the special features of this case, including the serious allegations made against the claimants, justified a hearing at a higher level. An application to the court is a recognised procedure for seeking revocation in an appropriate case: Williams, Mortimer and Sunnucks at 27-17. An alternative route, although not put forward by Mr Cliff and Mrs Spencer, would have been an appeal under rule 65. Such an appeal is by way of summons issued at the Principal Registry and is made to a High Court judge. The claimants chose instead to issue a claim form and application notice in the Chancery Division. The procedural route was therefore different from an appeal under rule 65 but the end result of a hearing before a High Court judge was the same. I do not see that there would have been any significant difference in the amount of costs incurred.

Alternatively, it is submitted that the claimants could and should have brought the limited grant to an end by applying for a grant of probate. In view of the evidence in support of the application and on which the grant was made, as well as the subsequent conduct of the administrators, the claimants were in my judgment entitled to apply for a revocation of the grant and were not required to allow Mr Cliff and Mrs Spencer to remain as administrators pending an application for probate. In any event, it is accepted that the complexity of the estate and the issue of Mr Ghafoor's domicile will complicate and delay an application for probate.

Taking account of all these circumstances, I consider it right that the claimants' costs should be paid at least by Mr Cliff and Mrs Spencer. Equally I do not think it right that either the claimants' costs or the costs of Mr Cliff and Mrs Spencer should be paid out of the estate, which would principally be to the cost of the claimants. I think it fair to mention here that, although there was no suggestion of Mr Cliff and Mrs Spencer being treated differently in relation to any liability for costs, it is apparent on the evidence that the principal responsibility for the relevant events lies with Mr Cliff.

Application for indemnity costs

The claimants seek an order for the assessment of their costs on the indemnity basis. The leading authorities make clear that, while the court has a wide discretion as to whether to order costs on the standard or indemnity basis, there must be something in the conduct of the proceedings or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs. Where, as in the present case, it is the conduct of the paying party which is relied on, there must be some element in his conduct of the case which deserves some mark of disapproval; unreasonableness to a high degree may be sufficient. See Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879 and Simms v Law Society [2005] EWCA Civ 849.

The claimants rely on the circumstances in which the grant was obtained, particularly the lack of notice of the application and the contents of Mr Cliff's affidavit, on the subsequent failure to inform the claimants of the grant and the lack of independence shown by the administrators, and on their decision until a late stage to resist the application. For reasons which I have already explained, while in my view Mr Cliff and Mrs Spencer were wrong in respect of a number of these matters, their conduct or evidence was understandable. In other respects, their conduct is not readily excusable: for example, the evidence that the claimants had refused to cooperate with them, the unsubstantiated allegation of intended misappropriation, and the failure to notify the claimants of the grant. Although the proceedings commenced by the claimants in August 2005 are technically separate from the application for the grant, they are in substance one proceeding and the matters to which I have referred can properly be seen as part of the conduct of the proceedings for these purposes.

The claimants' case for indemnity costs is a substantial one, but on balance I have decided that I should not order an assessment on that basis. Mr Cliff and Mrs Spencer made serious errors in a number of respects but I am satisfied that they had no intention to mislead the Registrar. In many respects they were acting on information and instructions given to them by Mrs Farooqi and in others they adopted what appeared to be the accepted practice in Non-Contentious Probate proceedings. It is also fair to bear in mind that they were seeking to deal with a petition presented in Pakistan without any adequate explanation by the claimants to Mrs Farooqi and which, without a proper understanding of the relevant Pakistani law, reasonably gave rise to considerable cause for concern. I also bear in mind that their initial opposition to the application for revocation was not carried through to a contested hearing.

Application for costs against Mrs Farooqi

The next issue is whether an order should also be made against Mrs Farooqi. The claimants seek such an order. Mrs Farooqi was a proper party to the application and she opposed the revocation of the grant, until shortly before the hearing in September. The application for the grant was made by her solicitors and in order to protect her position. The contents of Mr Cliff's affidavit were largely based on information and instructions provided by her. It was her request that they should not inform the claimants of the grant, and she herself did not inform them.

The order is opposed by Mrs Farooqi. In addition to points made by Mr Cliff and Mrs Spencer which I have already dealt with, Mr Dumont on behalf of Mrs Farooqi submitted, first, that faced with what she saw as the claimants' refusal to cooperate with her in the early months of 2005 and then with the petition which was not served on her, she acted reasonably in taking steps to protect her position. It is not suggested that Mrs Farooqi had acted in bad faith in relation to the application for the grant of administration, but she was acting on a misapprehension of the true position in Pakistan. The claimants are open to criticism for not explaining to her at an early stage, in writing if need be, the purpose and effect of the petition in Pakistan and for not providing her with a copy. Equally, she could have written to them for an explanation once she obtained a copy of the petition. Indeed, given that one of her principal complaints was that the petition had been issued in Pakistan without notice to her, it is all the more surprising that the application for the grant should be made without notice and that she should request Mr Cliff and Mrs Spencer not to inform the claimants of the grant. The issue in these proceedings was not whether it is understandable that she acted as she did in May and June 2005 but whether, in the light of the allegations made in Mr Cliff's affidavit, the lack of notice of the application to the claimants and the subsequent conduct of Mr Cliff and Mrs Spencer, the grant should be revoked. She chose to oppose an application which was in my view well-founded.

Secondly, Mr Dumont submitted that the claimants could not properly be said to have succeeded on the application. The result was a compromise in which the claimants obtained the revocation of the grant because she recognised that Mr Cliff and Mrs Spencer did not enjoy the confidence of the claimants and Mrs Farooqi's concern that the estate should be represented was met by the mutual undertakings to use best endeavours to cooperate in an application for the grant of probate. In my judgment, as I have already said, the grant could not stand and, while the court might well have required to be satisfied that proper representation would not be long delayed, the claimants in substance succeeded in their application. Their position had been that the grant should be revoked, leaving the executors to proceed to deal with matters, including an application for a grant of probate.

Thirdly, it is submitted that the claimants acted with unnecessary haste when they issued proceedings while she was on holiday. The suggestion is presumably that they should have awaited her return. This ignores that the grant had been deliberately kept from the claimants at Mrs Farooqi's request and that they discovered it only just before she left for her holiday. There was contact with her before her holiday and an e-mail from her on 10 August 2005 made clear that she would agree to the revocation, but only if the claimants agreed to a distribution of the assets in Pakistan in equal proportions. When she returned form holiday and had time to consider the application, her position was to oppose it and to seek costs against the claimants.

In all the circumstances I think it right to make an order for the claimants' costs against Mrs Farooqi, to be assessed on the standard basis. For the same reasons she should not be able to recoup her costs out of the estate. It was submitted for Mrs Farooqi that Mr Cliff and Mrs Spencer were more culpable than her. She cannot be blamed for the use of an application without notice. It was Mr Cliff who swore an affidavit containing what he acknowledged were errors. It was their duty as administrators to override her wishes and notify the claimants of the grant.

At one stage Mr Dumont submitted that for these reasons Mr Cliff and Mrs Spencer should pay her costs and indemnify her against any liability to the claimants. He did not, however, press this as it would be impossible to determine it fairly as between Mrs Farooqi and her solicitors without evidence and disclosure of privileged matters.

The claimants agreed that Mr Cliff and Miss Spencer were more culpable and sought an order that the primary liability for costs should fall on them. Just as with Mr Dumont's submissions, this cannot I think be fairly determined except on the basis of evidence and disclosure of privileged material. It is essentially an issue as between Mrs Farooqi and her former solicitors.

The administrators' oath

A further matter relied on by the claimants as a ground of revocation and therefore in support of their claim for costs against Mr Cliff and Mrs Spencer were the terms of the administrators' oath as it related to the value of the estate:

"To the best of our knowledge information and belief the gross estate passing under the grant does not excess £263,000 and the net estate does not exceed £263,000 and that this is not a case in which an Inland Revenue account is required to be delivered."

This is standard form language used to describe an excepted estate with a value less than the threshold for inheritance tax. After the hearing in September 2005 the claimants obtained a copy of the oath as sworn on 22 June 2005. At the costs hearing they alleged that it was obviously untrue, as Mr Cliff must have known in the light of the information available to him as to the assets in the estate. The grant was therefore obtained on the basis of a statement in the oath known to be untrue and that provided a further ground for revocation. It was also conduct which justified an order for indemnity costs.

Mr Cliff had little opportunity to deal with this allegation and, in view of its potential seriousness, I thought it right to give him an opportunity of filing evidence addressed to this point. He swore a further substantial affidavit on 2 December 2005. He explains that the gross and net figures given for assets in the oath represent assets passing under the grant and relate therefore only to assets within the jurisdiction, so in this case excluding assets in Jersey and Pakistan. He further explains his understanding that because of the urgency with which applications for grants ad colligenda bona are made, the Inland Revenue does not require the filing of an Inland Revenue account or the payment of inheritance tax as a pre-condition. He appreciated that Mr Ghafoor's total estate would almost certainly exceed IHT threshold. Mr Cliff's understanding was that the Registry required at least some information on the gross and net estates and he knew that he had to insert figures to the best of his information and belief. He points out that precise figures were not available. He decided that, as the value of the English assets could be below the inheritance tax threshold, the logical conclusion was to use that threshold. It was then, and it remains, his belief that the oath was true.

This evidence is not consistent with the explanation given in court on instructions but this is not an issue which justifies further investigation, by cross-examination or otherwise. I therefore accept Mr Cliff's evidence that he believed that it was right to make the oath in the terms used by him and that he believed it to be true. It is supported by the covering letter with which he sent the oath to the Registrar in June 2005, in which he stated that he would send full details of the estate to the Inland Revenue once he had been able to establish them but that he was not then able to complete the necessary Inland Revenue account.

I am surprised, if it is in fact the case, that in circumstances of such uncertainty he was required to use a rigid form of words in his oath. It would be far better to summarise the circumstances, and explain the uncertainties. In a case of urgency, this may be as much as can be done and the oath would accurately convey the true picture as then known.

Mr Cliff appears to have misunderstood the scope of the further evidence for which I gave permission and his affidavit goes far wider than dealing with the terms of the oath. In a subsequent written submission, the claimants objected to me reading the affidavit without hearing further submissions. I did not consider that further submissions would assist. I read the affidavit but I attach no weight to it, save as regards the circumstances of the oath. The rest of it is in large part a repetition of earlier material.

There is one matter dealt with by Mr Cliff in his affidavit on which I must comment. Following the hearing before me, Mr Cliff telephoned the Registrar on two occasions concerning the case. He submitted 17 written questions to which the Registrar provided full written answers. This was followed by a further 12 questions to which the Registrar also provided written answers. The subjects covered included questions such as whether the Registrar would have made the order in June 2005 if Mr Cliff's affidavit had not contained the acknowledged errors and whether the Registrar believed that he had been misled.

In my judgment, this was an entirely inappropriate exercise. Whatever the precise status of district probate registrars (as to which, see R (on the application of D'Costa and Joyce) v Secretary of State for Constitutional Affairs [2006] EWHC 465 (Admin)), it is clear that in the fulfilment of many of their duties under the NCPR, they are undertaking a judicial function. They exercise discretion in deciding whether to accede to applications which are made on the basis of evidence and which affect the position of other persons. They may direct the issue and service of a summons, they may deal with contested applications and they may make orders for costs. Most of these applications, whether on notice or without notice, may be dealt with under the rules by a district judge or by a registrar. A dissatisfied party may appeal a decision to a High Court judge.

It is inimical to a judicial process that a party should engage in private communications with the person exercising the judicial function whether during the proceedings or at a later stage. It is equally inimical that such a person should be invited to provide what amounts to evidence as to his decision. Unless the matter is being re-heard by him, he should not be asked to provide, nor should he provide, his views on any aspect of the case, including the effect which evidence which was not before him might have had on his decision.

I consider that it was improper for Mr Cliff to approach the Registrar. The Registrar no doubt thought that he was assisting the determination of the application by providing answers, but I consider that it was a mistake for him to do so. I have disregarded his answers.

Conclusion

In conclusion, therefore, I order the defendants to pay the costs of the claimants, to be assessed on the standard basis.

It will be apparent that in my view the application for the grant in this case went wrong in a number of ways. The most important were that the application and the order were made without notice. If notice had been given to the claimants, they would have had the opportunity of putting their evidence before the Registrar. Their evidence would have disputed every relevant aspect of the applicant's evidence. In those circumstances, and in view of the conflicts of laws issues which would then have been apparent, the Registrar would have considered whether to refer it for decision by a district judge or a High Court judge.

I consider it very unlikely that in comparable High Court proceedings, a judge would have regarded this as a case in which an order should be made without notice. If the urgency required it, a judge would abridge the time for notice. If the urgency were so great that not even informal notice could be given, any order would be subject to a further hearing on notice within a short time. The applicant would be required to give immediate notice of the order to the executors and to supply copies of all material relied on to obtain that order and a note of any hearing.

This is the standard approach in litigation in the High Court. In a case such as the present, where there is already a significant level of dispute and the order will be controversial, I see no reason why the same approach should not be adopted in applications to probate registries.

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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ghafoor & Ors v Cliff & Ors [2006] EWHC 825 (Ch) (11 April 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/825.html Cite as: [2006] 1 WLR 3020, [2006] WLR 3020, [2006] EWHC 825 (Ch)